Catcher In The Rye Sequel Fight Could Lead To Forced Licensing Rather Than Injunctions In Some Copyright Suits

from the mercexchange-for-copyright? dept

You may remember that last year, before he died, JD Salinger sued the author of an unofficial "sequel" to The Catcher in the Rye, called Coming Through the Rye, which had already been published overseas, but was slated for publication in the US. Pretty much everyone agrees that this unofficial sequel isn't particularly good, and it likely would have quickly faded into obscurity if Salinger hadn't brought the lawsuit. Instead, however, a court banned the publication of the book, claiming it was copyright infringement.

This is massively troubling if you believe in the First Amendment. Just think about it for a second: this is a book that was published around the world, but is banned in the US -- the supposed bastion of freedom of speech and expression.

The problem is that, despite the fact that copyright is supposed to recognize the difference between the idea and the expression (and only protect the specific expression), lately the courts have been blurring that distinction massively. If you honestly believe that copyright only protects the expression -- as the courts have said -- then someone creating a totally different expression should not... no, cannot be barred. But, the reality is that many people -- including some judges -- don't seem to recognize the difference between an idea and an expression, and what copyright is supposed to cover.

Anyway, Esahc points us to the news that the lawsuit has been sent back to the district court by the appeals court, to determine whether or not the publication of the unauthorized sequel would cause any "harm" to the original publication. However, the reasoning here is a bit surprising. The court did not find any problems with the copyright infringement ruling -- and, in fact, claimed that it thought Salinger (and his estate) would likely prevail on that point if the case was appealed.

Instead, the Appeals Court simply questioned whether or not the injunction was the proper response to the infringement, and told the lower court to apply the rules the Supreme Court set out in the MercExchange ruling four years ago. This is a bit surprising, since MercExchange focused on whether or not injunctions were the proper response in patent cases, not necessarily copyright -- but it does appear that various courts have been trying to apply MercExchange to other types of cases. As such, the test that the court needs to decide is whether or not Salinger's estate would suffer "irreparable harm," if the publication of the unauthorized sequel went forward. That might be a very difficult standard to live up to, as I can't see any harm at all caused by the sequel (in fact, I would imagine the opposite would occur, in that it would drive more interest in the older book).

So what might that mean? If the MercExchange patent rulings are any indication, if the courts find that the unauthorized sequel did infringe on copyrights, it could require the author and his publisher to pay a set fee to the Salinger estate, and still allow the publication -- creating a de facto compulsory license. Actually, the book No Law, has argued that just such a result would actually bring copyright law much more in line with the First Amendment -- allowing people to be free to express themselves, but requiring they pay up if they infringe. However, it would represent a pretty major shift in copyright law. You can read the full decision below -- and here's a press release from the publisher, hyping up the ruling much more than it deserves. The Salinger estate will almost certainly push for the injunction to be put back in place, and we'll have to see what the court decides, before we know if this book ever gets published in the US. But just the fact that it's saying the MercExchange rules should be used for copyright infringements is a big, big deal.

Reader Comments

Questions:

"If you honestly believe that copyright only protects the expression -- as the courts have said -- then someone creating a totally different expression should not... no, cannot be barred."

In legal terms, how is expression defined? Is it an entire work in its totality? Can it be a partial work? For instance, is all of Catcher in the Rye copyrighted, AS WELL as each individual chapter, section, line, etc., or is it just the total work? More to the point in this case, can you consider unique characters and/or settings to be copyrighted expression in and of themselves, or only within the context of the entire work?

"The Salinger estate will almost certainly push for the injunction to be put back in place..."

Why? Are you suggesting that this estate is more concerned with the quality of the work associated with the original rather than just a money grab? If it were money they were interested in, you'd think a compulsary license order would be a boon for the estate. Not that I'd agree with them, but I'd have much more respect for the estate if they were actually chiefly concerned with the art compared to money....

Re: Questions:

As I understand it you can break the book down until you get a part that doesn't meet the criteria for being a copyrighted work on its own. Of course, fair use or its equivalents may apply too.

"For instance, is all of Catcher in the Rye copyrighted, AS WELL as each individual chapter, section, line, etc., or is it just the total work?"

This seems to be where interpretation of the law is getting muddled. You may remember the recent articles about Sherlock Holmes which also made reference to the Catcher In The Rye sequel; strict interpretation says no, copyright sympathetic judges and self interested lawyers seem to say yes.

"Why? Are you suggesting that this estate is more concerned with the quality of the work associated with the original rather than just a money grab? If it were money they were interested in, you'd think a compulsary license order would be a boon for the estate."

No, it would make more sense for them to hold out so they can dictate terms to people looking to produce 'infringing' works rather than letting the court decide the terms. They probably don't care about selling one book if it means they forfeit their ability to set the terms.

Re: Re: Questions:

"This seems to be where interpretation of the law is getting muddled. You may remember the recent articles about Sherlock Holmes which also made reference to the Catcher In The Rye sequel; strict interpretation says no, copyright sympathetic judges and self interested lawyers seem to say yes."

Just to correct myself in the context of what I was replying to: I misread chapter as character. I meant no to the question of ideas being copyrighted.

In regards to works being copyrighted in totality or part: as I understand it each word within a work could potentially stand on its own as being copyright protected. Even so, pretty much any word would fail the test for eligibility. A good example is the case of Disney's supercalifragilisticexpialidocious; had there not been prior art to cite in defence then Disney may have been liable for infringement.

Re: Re: Re: Questions:

So by using the term "truthiness" I am infringing on Stephen Colbert's copyright?

...
How's that dictionary coming, Websters?
...

While on the whole I agree with you, I don't agree with the notion that you can copyright a single word. A work on its own, yes, parts of the work, perhaps -that depends on context whether its protected by copyright or not- but not single words. Because where would it end?

fair use

is all of Catcher in the Rye copyrighted, AS WELL as each individual chapter, section, line, etc., or is it just the total work?

That's part of what Fair Use is for. The amount taken from the original work should only be a small part of the resulting work. (That's leaving aside teaching, criticism and satire, which don't really apply here.)

But from what I know, the only thing the "sequel" did was recycle the names and such. It did not actually quote any part of Catcher In The Rye.

Since you can't copyright a name, there shouldn't have been a case here at all. It's pretty open-and-shut, in fact, so I don't understand the court's ruling.

I'm pretty sure that if they appealed the copyright claim, the sequel's publishers would win. So I don't understand why they're not doing that.

Re: Re: fair use

The courts have long upheld that characters are "expressions" not "ideas".

Since when? I didn't know this. I've heard about making characters a trademark (as in Disney's case), but not copyrighting them.

And you definitely can't copyright a plot (or a backstory), unless you're copying the exact sentences used. A story is an idea, which can't be copyrighted; the exact sentences are expressions, which can be.

So, I still don't get how it could be infringement. Unoriginal, certainly, and bordering on plagiarism (which is not illegal), but not copyright infringement.

Re: Re: Re: fair use

Since when? I didn't know this. I've heard about making characters a trademark (as in Disney's case), but not copyrighting them.

Do some research then, for christ's sake.

And you definitely can't copyright a plot (or a backstory), unless you're copying the exact sentences used. A story is an idea, which can't be copyrighted...

Incorrect again. While there are many individually unprotected elements in any story, if access and substantial similarity can be shown (barring scenes a faire and the like), infringement can been deduced.

And there are many such cases to rifle through had you actually wanted to learn a little about the subject before commencing to throw your -2 cents in.

Re:

Which of us advised anyone to circumvent copyright by buying a book from overseas?

Also, I'm less interested in the book than I am in the issues surrounding it. I liked CITR when I was 18, but it's not my taste now. I probably wouldn't like the sequel either, and have no plans to read it. That's just me, of course.

Compulsory license for derivative works?

Compulsory licensing works quite well for performance rights (i.e. a bar or radio station doesn't need to negotiate with each musician to play their songs), but I'm not sure it would work for derivative works. Would there be two classes of derivative works (official and unofficial)?

Sounds like copyright infringment to me

I'm normally right with TechDirt on issues of copyright, but I think you've gone a little overboard here.

Salinger didn't just write a book, he created characters, characters such as Holden Caulfield which have become world-reknown. For someone to appropriate those creations and use it in another unauthorized work seems to be the exact kind of violation copyrights were always meant to protect.

As an author, Salinger deserves the right to protect the integrity of the characters he's created. Simple as that. To draw a more obvious parallel, would this article be here if it involved Disney suing someone for creating a cartoon with Mickey Mouse in it? Of course not. And, this is no different.

Re: Sounds like copyright infringment to me

So, because this Holden Caulfield character is so wellknown around the world (except he isn't, Catcher in the Rye isn't exactly on booklists in my neck of the woods, before Conspiracy Theory, I had never heard of the book), you can't write a story based on him?
How about a story that references CitR?

How about a lesser known character?

How about you just happen to use a name, someone else also used in a different novel? And they just happen to have the same occupation, or something.
Where do you draw the line?

Re: Sounds like copyright infringment to me

As an author, Salinger deserves the right to protect the integrity of the characters he's created. Simple as that. To draw a more obvious parallel, would this article be here if it involved Disney suing someone for creating a cartoon with Mickey Mouse in it? Of course not. And, this is no different.

You seem to be confusing trademark and copyright law for the most part. The bigger lawsuit for using Mickey Mouse would be for violating the trademark.

The copyright of Mickey Mouse is solely for the drawing of him -- which is the expression -- not for the rest of his character.

"But, the reality is that many people -- including some judges -- don't seem to recognize the difference between an idea and an expression, and what copyright is supposed to cover."

A very odd thing to claim since the judges - unlike the Masnicks - would need to be very clear about the distinction in order to apply the law and very likely - unlike the Masnicks - read both books in order to understand that.

"...as I can't see any harm at all caused by the sequel..."

Perhaps we should dispense with the whole judicial process and just rely on the imagination (and religion) of the Masnicks ?

Re:

A very odd thing to claim since the judges - unlike the Masnicks - would need to be very clear about the distinction in order to apply the law and very likely - unlike the Masnicks - read both books in order to understand that.

Well, let's point out that, thanks to this judge, none of us can read the book. Which is a clear violation of the First Amendment.

However, what we CAN read is the judge's decision, that DOES NOT explain how this copying of the idea was actually copying of the expression.

But you're not here to deal in facts, are you? Just to insult me.

Perhaps we should dispense with the whole judicial process and just rely on the imagination (and religion) of the Masnicks ?

See, someone who had a real argument wouldn't just throw out the ad hominem, but would actually explain how this harms the original.

But, again, your reason for posting this comment has nothing to do with actually making a point.

Re:

Catcher in the Rye

This unique work of art by J.D. Salinger should not be reproduced without permission from the trustees of his estate.
To do so is plainly misrepresentation and theft.
I can't understand how that is not obvious to any person of average intelligence.jonmark222@aol.com